Real talk about 8th Circuit NFL lockout ruling

In today’s annoying NFL lockout update, last night the 8th Circuit ruled 2-1 that the stay of the injunction of the lockout would remain in place until the appeal of the injunction was completed. Short version: Still a lockout and will likely remain a lockout after appeal is heard. This is not too surprising given their ruling during the draft on whether a temporary stay should be put in place.

In sum, we have serious doubts that the district court had jurisdiction to enjoin the League’s lockout, and accordingly conclude that the League has made a strong showing that it is likely to succeed on the merits.

Basically, the court agreed with the owners on a broad reading of the jurisdictional issue on whether a court had the authority to issue an injunction. They also ruled for the owners on whether the balance of harm was on the owner or players side at this particular time.

[I personally don’t agree with the majority opinion’s broad interpretation of the jurisdictional issue and think both the lower court and 8th Circuit muddled up the harm issue, but they didn’t ask me. Split decision. As I’ve said before, if you want certainty, don’t go to the courts, work it out yourself].

What this means is that the players are unlikely to win this appeal in June, decided in July. This keeps the NFL lockout in place if a court doesn’t have the authority to stop it. A few items of interest on the subject:

As far as we can tell, this is the first sports league in history that’s sued to not play its game. Congratulations. What we’re going to do is continue to work hard on behalf of the players. We believe in the mediation process, we’re going to honor the confidentiality and my hope is that someday soon we can get back to playing football.

His first sentence might be true but it isn’t helpful. They parties are in the middle of mediation right now and this sort of rhetoric is counterproductive. The owners reportedly have given a new outline for an offer, and there’s differing views on how optimistic people should be about this:

The ruling takes away a lot of the leverage for the players but not all of it. The underlying lawsuit remains, and there is also the TV proceeds lockout out fund case that was already decided in favor of the players but the damages need to be decided, (then appealed, then litigated to death).

The optimist’s view.

The optimist’s view is that by getting an early, very specific ruling, it will encourage the sides to mediate with more urgency, thus saving the season and having a real off-season so that fans aren’t paying full price for thrown together football. Support for this point of view comes from Yahoo! Sports Mike Silver who has written some pretty scathing anti-owner pieces during the lockout:

I agree with that last point of view. The NFL needs to give the players an offer that is reasonable. In general, when parties are faced with an no good proposals, they often respond like a cornered animal. Even though the players may have lost some leverage, they aren’t without any. NFL owners are facing huge losses with no season. No reasonable proposal means continued mutually assured dismemberment.

None of this stuff makes much sense, but things involving money and ego rarely do.

The pessimist’s view.

The pessimist’s view is why should we expect NFL ownership to present any reasonable proposals given that they’ve gone through the loss of money and goodwill to come this far? They’ve prepared for a lockout, and season interruption, and they will do everything they can to get the key items they want.

There’s blood on the water and they are blood on the water negotiators. They’ve had season disruptions before and started this fight despite the NFL being the most popular and healthy sport in the US.

Key negotiating points: 1. Money battle; 2. Getting out from under court oversight. The first one is obvious. The second one is a big issue. The owners do not like when their disputes end up going to the courts. The players have a long history of the owners doing shenanigans and see the courts as the only thing stopping the owners doing whatever they want. The money issue is a matter of compromise, but the court issue will be hard to finesse.

It is now time to devote all of our energy to reaching a comprehensive agreement that will improve the game for the benefit of current and retired players, teams, and, most importantly, the fans.

Not sure how any of the proposals made by the NFL so far benefit the players and fans more than the old CBA. (There’s been some claims that the last proposal helped the players but I think most of things offered were more PR than actual benefits, and certainly don’t make up for the financial loss). The real talk version of the NFL’s statement is “We want an agreement that benefits the owners. This will benefit the players and fans because it is better than a lockout.”

A tweet from Daniel Kaplan of Sports Business Journal who has followed the case closely.

My view. I’m not optimistic on this though I’d love to be wrong. Nothing has really changed. Leverage goes back in forth. The clock is ticking towards the season. The ego, greed and mutual distrust remain.

My preference was for the lockout to be lifted. For us to have football while the courts sloooowly did there thing. And eventually a CBA would be negotiated while play went on as has happened in the past during litigation. That doesn’t look like it is going to happen. Given the detail of the court’s ruling, they are unlikely to allow an injunction of a lockout. And I don’t see the players caving to the NFL’s hardball any time soon.

I agree with the owner’s point of view that negotiations to a new CBA instead of courts is the best way of doing things. As I’ve been preaching for a while, once you get the courts involved with things, all sorts of bad unintended consequences can happen.

The problem with the owner’s point of view on negotiations is that they don’t make reasonable proposals. Instead of focusing on the major issues with the league–like reworking the system to deal with rookie busts and rewarding those players that outplay their rookie contracts–they just want what they want because they figure they can out wait the players. Not sure that does anything other than get the players to dig in their heels more.

This mess is in court because the NFL is playing hardball and so is the players. If the NFL truly didn’t want to be in this court mess, they would have been much more realistic in their proposals before the end of the CBA. Everybody knew the only leverage the players had was the courts, and the players did what any rational entity did when faced with mostly unpalatable options.

The optics of this are going to get very weird.

The players get a work stoppage (without pay) without the terrible PR of a strike or even the ability of players to cross picket lines even if they wanted to. They haven’t had a work stoppage in many years, but they are making noises that they are prepared for the lockout. The smart players saved their money, and the non-smart players or those with no contracts end up being cannon fodder for a working out a CBA that will apply to them and future players.

And the NFL will try to come across as the good guys who say disparaging things about their workforce–the players who the fans pay to see. They will continue to lockout the game as a “legitimate labor leverage tool,” but fans don’t care about leverage. They want football. The NFL will try to come across as the good guys even though if there is an abridged camp or season, they will expect fans to pay full price for a thrown together product.

This whole situation is too dumb for words. I apologize for having to use them but people asked about this.